Parker v. Belcher

Bleckley, Chief Justice. 1. A suitor in the superior court has no right to con-suit the judge while off the bench for his opinion as to when the case will come on for trial, or as to what will be done with it when it does come on. The sayings and doings of the judge in such an interview areextra [114] judicial, and cannot be treated as announcements or rulings of the court. It is manifest that Mr. Parker had no leave of absence. Not only so, but he was expressly warned by one of his counsel not to absent himself. He nevertheless went home, and thus failed to be present when his case was called and brought on for trial. The counsel present made no motion for a continuance on the ground that associate counsel was absent with leave of the court, or on. any other ground, but finding himself abandoned, as he supposed, by his clients, consented that a verdict might be taken in favor of the opposite party, the defendants in the action. The sole question of any difficulty presented by the evidence adduced on the hearing of the petition to set aside this verdict and the judgment for costs founded thereon is whether the agreement of the opposite party or counsel to pay the fees of the plaintiffs’ counsel tainted the consent with fraud as against the plaintiffs. But this question is not covered by the petition. The petition does not rest on the ground of fraud, but expressly alleges “ that said ease was called and the verdict rendered therein through inadvertence and after petitioners had been discharged from further attendance on said court.” According to the facts in evidence, this allegation is simply untrue. There was no inadvertence, but average attention to everything that was done, and the plaintiffs had not been discharged from further attendance on the court. That one of their counsel was absent with leave of the court, though he was the leading counsel and the one mainly relied on, was no reason for granting a continuance not applied for in due time and manner, there being one counsel present and undertaking to conduct the cause. A proper showing has to be made where the leading counsel is absent, even though his absence be occasioned by providential cause. Code, §3525. 2. It can hardly be seriously contended that a verdict [115] and judgment for costs only should be set aside merely because rendered against the plaintiffs in a suit brought by them in a court having no jurisdiction of the subject-matter. If they are not liable for the costs of their own action, who is liable? Their redress, if any, is against their attorney for bringing action in the wrong court. "We do not say that this was done, hut simply ¡rule on the question as made. Indeed, this ground is not only without affirmative merit, but, assuming it to he true in fact, its effect would be to negative or neutralize any reason whatsoever for reinstating the case. Why should the court resume the exercise of jurisdiction if it had no jurisdiction at first ? There was no error in denying the prayer of the petition to set aside the verdict and judgment. Judgment affirmed.